Eligibility of Palestinians’ Bid to Join ICC Disputed; US Funding is Targeted

By Patrick Goodenough | January 9, 2015 | 4:33am EST

Palestinian Authority chairman Mahmoud Abbas at United Nations headquarters in New York on Friday, Sept. 26, 2014. (AP Photo/Richard Drew)

(CNSNews.com) – As Sen. Rand Paul (R-Ky.) seeks to cut U.S. funding to the Palestinian Authority unless it drops its bid to join the International Criminal Court, the ICC application is stoking fresh debate over the decision by the U.N. General Assembly in 2012 to upgrade the status of “Palestine” at the U.N.

If that 2012 decision to grant the Palestinians “non-member observer state” status was simply a political expression by the 138 member-states that voted in favor, then the P.A. should not be allowed to join the ICC, critics of the initiative contend. The U.S. government holds that view.

But supporters of the P.A. bid to join the ICC’s founding Rome Statute argue that the 2012 decision does hold legal weight. The ICC’s chief prosecutor appears to lean in that direction too.

The Obama administration has requested $441 million in financial aid to the Palestinians in fiscal year 2015.  A provision in the omnibus government spending bill passed last month prohibits any economic support funding to the P.A. if it initiates “or actively supports” an ICC investigation against Israel.

Now Paul has introduced a bill aimed at tightening the restriction, putting funding on the line not only if an investigation begins but if the P.A. does not withdraw its application to join the ICC.

The bill (S. 34) states that “no amounts may be obligated or expended to provide any assistance, loan guarantee, or debt relief to the Palestinian Authority, or any affiliated governing entity, until the Palestinian Authority withdraws its request to join the International Criminal Court.”

“We are currently sending roughly $400 million of U.S. taxpayer dollars to the Palestinian Authority,” Paul said on Wednesday.

“Certainly groups that threaten Israel cannot be allies of the U.S. I will continue to do everything in my power to make sure this president and this Congress stop treating Israel's enemies as American allies.”

Legal wrangling

Back in 2009, the P.A. requested that “Palestine” be considered a state for the purposes of ICC jurisdiction. But after a three-year examination and consultation process the then chief prosecutor, Luis Moreno-Ocampo, rejected it, saying the P.A. could not sign up to the Rome Statute.

In his decision, announced seven months before the UNGA vote, he said his office lacked the authority to determine whether the P.A. self-rule area constituted a “state.”

Last fall, however, Moreno-Ocampo’s successor, Fatou Bensouda, indicated that the 2012 General Assembly (UNGA) vote in New York had changed the situation.

In an op-ed in the Guardian, she wrote that her office examined the legal implications of the UNGA decision, and concluded that “Palestine could now join the Rome statute” if it chose to apply.

The U.S. government disagrees.

“The view of the United States is that the Palestinians have not yet established a state,” the State Department said in a statement Thursday.

“The United States does not believe that the Palestinians are eligible to become a party to the Rome Statute or any of the other treaties at issue …”

Ban’s role in the spotlight

U.N. secretary-general Ban Ki-moon is the “depositary” for the Rome Statute, and in that capacity accepted the P.A.’s formal application to join the ICC. He announced this week that the Palestinians would formally become a member on April 1.

Ban drew some criticism for his actions.

Former Israeli foreign ministry legal advisor Alan Baker, director of the Institute for Contemporary Affairs at the Jerusalem Center for Public Affairs, said Ban should have refused to accept the application, since the Rome Statute limits membership to states.

Citing the 1969 Vienna Convention on the Law of Treaties, Baker wrote Thursday that a treaty depositary is required “to check that the request for accession be in good order,” and in this case Ban’s acceptance of the application was legally flawed.

“There is no doubt that the 2012 UN General Assembly Palestinian upgrade resolution was nothing more than a political expression of opinion by those states voting in favor,” he said.

“It was not a legal determination and could not create a Palestinian state, nor could it serve as a legal basis for determining that the Palestinians are a state, or for a depositary’s accepting them as such.”

Ban’s office says the secretary-general simply carried out what it is “administrative function.”

“In conformity with the relevant international rules and his practice as a depositary, the secretary-general has ascertained that the instruments received were in due and proper form before accepting them for deposit,” spokesman Stephane Dujarric told a briefing on Wednesday

“It is important to emphasize that it is for states to make their own determination with respect to any legal issues raised by instruments circulated by the secretary-general.”

International law professor Abdul Rahman Ali of the Beirut-based Al-Zaytouna Center for Studies and Consultations, argues that the UNGA Assembly’s 2012 decision makes all the difference, and that “the problem of whether or not Palestine has the right to sign up for the Rome Statute has ended.”

“No side can challenge Palestine’s right as a state to join the Rome Statute,” Ali said in a recent legal opinion. “The Assembly of States Parties to the Rome Treaty cannot question, challenge, or reject a request from Palestine to join, because the U.N. General Assembly is the only body mandated to this, and it has recognized Palestine as a state.”

At the time of the UNGA vote, the Obama administration made it clear it viewed the resolution as holding no weight.

“Today’s vote should not be misconstrued by any as constituting eligibility for U.N. membership. It does not,” said then ambassador to the U.N. Susan Rice. “This resolution does not establish that ‘Palestine’ is a state.”

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